This blog focuses on news and information regarding practice in the federal courts in the Eastern District of California, with a special emphasis on criminal and civil rights cases.

Blog Author

John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.

Disclaimer

This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.

marijuana

April 05, 2018

In the largest operation of its kind, federal agents swept across the Sacramento region Tuesday and Wednesday targeting about 75 homes serving as suspected marijuana growing sites that authorities say are operated by a Chinese organized crime syndicate.

The raids, which involved more than 500 federal, state and local agents, hit homes from Elk Grove to Sacramento to rural areas and are aimed at forcing the forfeiture of about 100 homes to the federal government, an effort valued at hundreds of millions of dollars in real estate and marijuana.

“This represents one of the largest residential forfeiture efforts in the nation’s history,” the U.S. Justice Department said.

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In an unusual twist, no arrests have yet been made as the investigation continues and focuses on the manner in which the homes were purchased and the identity of suspects federal authorities believe handled the transactions.

December 07, 2017

In EDCA defendant Bryan R. Schweder's appeal, the Ninth Circuit issued this order Tuesday remanding his federal marijuana case to the district court "for the sole purpose of conducting an evidentiary hearing to determine whether, at the times that acts giving rise to his conviction for conspiracy to manufacture marijuana occurred, [Schweder] had 'strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana'" under United States v. McIntosh, 833 F.3d 1163, 1179 (9th Cir. 2016) (available here). (Remember this case. It's the one I blogged about extensively where, after a multi-day evidentiary hearing, Judge Mueller ruled that the classification of marijuana as a schedule I controlled substance was not unconstitutional.) McIntosh is the case where the Ninth Circuit held that a congressional appropriations rider prohibits the Department of Justice from spending funds for the prosecution of persons who engaged in conduct permitted by state medical marijuana laws and who fully complied with such law.

The remand order was issued one day after oral argument in San Francisco before Ninth Circuit judges Alex Kozinski and Andrew Hurwitz, and visiting N.D. W.Va. judge Irene M. Keeley. At the Ninth Circuit's website, you can watch or listen to the argument. My favorite part is when the Assistant U.S. Attorney steps up to the podium (18:40) and announces himself "for the United States." Judge Kozinski asks, how can you do that? Did you pay your own way here? Did you take a leave from the government? When he says no, the judge inquires,"why aren't you violating the rider?" Later, Judge Kozinski questions whether the prosecution committed legal "blackmail" (22:40-23:25; see also 25:45-27:47) by requiring Schweder to take its plea bargain without waiting for the then-pending McIntosh appeal to be decided.

In his appeal, Schweder argued, among other things, that because he was complying with California's medical marijuana laws, his guilty plea was not knowingly and voluntarily entered and he should be allowed to withdraw his guilty plea. Most of the argument is over what the appropriate remedy should be if Schweder's conduct was consistent with California law. Ultimately, the Ninth Circuit remanded to the district court to determine whether Schweder complied with California law. The panel retained jurisdiction for further consideration of the appeal after the district court rules on whether Schweder complied with California's medical marijuana laws.

April 06, 2017

Three men pled guilty Monday in Fresno federal court for conspiring to manufacture, distribute and possess marijuana on a Native American site in Domeland Wilderness area, the office of U.S Attorney Phillip A. Talbert said. Fresno Bee, 4/3/17

February 28, 2017

For the first time, President Donald Trump’s administration publicly took a side in the marijuana debate, saying Thursday it would direct the U.S. Department of Justice to crack down on violators of federal pot laws in states where recreational pot is legal. California, which approved recreational pot use in November and already has clashed with Trump over immigration, would appear to be a prime target for this new enforcement.

On Thursday, White House Press Secretary Sean Spicer said medical marijuana would not be targeted. But many medical marijuana companies are currently looking to expand into providing pot for recreational use, so making a firm differentiation could be difficult.

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In the Valley, it’s unclear whether any enforcement action is underway. Lauren Horwood, spokeswoman for the U.S. Attorney’s Office’s Eastern District of California, said her office had no comment on any changes to Department of Justice policy regarding marijuana.

January 25, 2017

Yesterday, according to this EDCA US Attorney press release, Judge Mendez sentenced Yan Ebyam to 6 years in prison for two separate conspiracies to grow and distribute marijuana in United States v. Ebyam, No. 2:11-CR-0275-JAM & 2:11-CR-0276-JAM.

January 10, 2017

Regardless of California law, the Fresno Bee reports that the feds are still busting people caught with marijuana in Yosemite National Park. According to the Bee, Yosemite issued 465 marijuana citations and made 123 pot-related arrests in the past two years.

December 19, 2016

Today's Sacramento Bee reports that Luke Scarmazzo and Ricardo Montes have sought clemency from President Obama to reduce their federal marijuana trafficking sentences of 262 and 240 months, respectively. The story says they opened Modesto's first medical marijuana dispensary in 2004. But no luck yet for the pair as I didn't see their names on today's White House's list of the 173 persons granted sentence commutations and 78 pardoned inmates. In fact, Dolly Ann Chamberlain is the only EDCA defendant on the list. She received a pardon after being convicted of conversion of government money and receiving a probation sentence in 2002. But there is still time for those waiting as the White House said it expects there will be more clemency grants before Obama leaves office.

On a somewhat related note, according to Politico, Newt Gingrich has suggested that President-Elect Trump should consider prospectively pardoning his family members for all the crimes they may commit while Trump is in office:

“In the case of the president, he has a broad ability to organize the White House the way he wants to. He also has, frankly, the power of the pardon,” Gingrich said. “It’s a totally open power. He could simply say, ‘Look, I want them to be my advisers. I pardon them if anyone finds them to have behaved against the rules. Period. Technically, under the Constitution, he has that level of authority.”

In other words, the rule of law doesn't apply to Trump and his family.

December 06, 2016

Last week, the last remaining defendant in the Schweder marijuana cultivation case before Judge Mueller was sentenced to time served, that is, the few days he had already served in custody before he bailed out in 2011. The defendants were sentenced from a high of 162 months (Bryan Schweder) to time served. Schweder is the only defendant to appeal. The government's motion to dismiss his appeal, No. 16-10272, because of an appeal waiver in his plea agreement is pending before the Ninth Circuit.

For those of you who've complained about the Obama administration's treatment of marijuana, it may get far worse. President-Elect Trump's nominee for Attorney General, Jeff Sessions, has been a staunch foe of marijuana legalization and reportedly once said he was ok with the KKK until he learned they smoked pot. The NY Times notes that under Sessions' leadership the Department of Justice could sue California to stop implementation of recently passed Prop 64, and I'd add the feds' policy of not seeking mandatory-minimum sentences in all drug cases could very well be coming to an end.

August 22, 2016

Today, the EDCA U.S. Attorney's Office filed this opposition to defendant Steven Adgate's motion to stay his prison sentence based on the Ninth Circuit's recent McIntosh opinion, which held that an Appropriations Act of Congress (§ 542) barred the Department of Justice from expending funds to prosecute individuals who were in compliance with state medical marijuana laws. No word on the hearing date yet.